EU Single Market Access
The key EU service providers’ rights are conferred on EU citizens. EU citizens are citizens of EU member states. EU citizens are also deemed, for most establishment purposes, to include companies or firms (partnerships) formed under the law of the member state having their registered office, central of administration or principal place of business within the EU. Such companies and firms are to be treated in the same way as persons who are nationals of member states in relation to the right of establishment.
A company incorporated in Ireland, meeting the above tests of sufficient establishment can retain the EU law rights to provide services from Ireland into other EEA states, to form a branch in another state on the basis of authorisation and regulation in Ireland and to form subsidiaries in other EU states in most circumstances.
The company concerned can be the subsidiary of a UK business in most cases. A certain degree of presence would be required in Ireland, depending on the requirements of the particular regulator. There is no reason in principle why other functions and activities cannot be contracted back to a UK based service provider within the group, provided that the above test of sufficient presence within Ireland is established and maintained.
The key EU provisions providing for the right to provide and receive services is effectively available to companies established in any EU state to provide services into another EU state. The European Union Treaties prohibit discrimination against a person providing services on the grounds of his nationality or the fact that he is established in another state, other than one in which the service is provided. Notwithstanding that the Treaty does not expressly confer a right on companies to provide services cross-border, the EU case law has long since held that this is a necessary consequence of the wording of the Treaties.
A company established in Ireland will have the right post-Brexit in most cases, to provide services in other EU states, in most circumstances. Services are very broadly defined and cover almost all economic activities undertaken for payment.
This right can be used to challenge rules laid down both by the host state and the home state regarding the provision of services. It covers cases where the service provider travels to the host state and cases where the service recipient travels to the state of establishment. It includes the case where neither the provider nor the recipient travel and the services are provided cross borders.